Bad Will | Foreclosure Eviction | I ♡ Boobies!

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Need a Will? It’s Best To Use A Lawyer

Need a Will? It ’s Best To Use A LawyerIn a recent decision, the Surrogate’s Court of Richmond County sua sponte denied a petition for probate because the hand written Will, prepared by the decedent herself over twenty years ago, was inartfully drawn and did not even come close to meeting the requisite level of formality required by EPTL § 3-2.1. See, Estate of Mary Neller, 40 Misc.3d 1237(A), 2013 WL 4082018 (Sur. Ct. Richmond Cnty. 2013).

New York’s Estates, Powers and Trusts Law (“EPTL”) is the statute that governs the validity of Wills made in New York. Although New York does not require that a Will be prepared by a lawyer, this case is an example of why you should turn to a lawyer that focuseson Wills and Trusts to help make sure your wishes are followed after your death, when it is too late to correct any mistakes.

The substance of the Will in Estate of Mary Neller contained grammatical and syntax errors, numerous vague, indecisive and even contradictory statements regarding the disposition of assets, particularly the decedent’s house. The two witnesses to the Will, who have since died, executed their signatures on a separate sheet of paper and did not provide printed names, dates or addresses. The decedent’s Will read:

To Whom It May Concern: In the event of my death. I want my daughter Georgina E. Coppins. Have my house, car and all its belongings to do as she sees fit. Anyone that owes me any amount of money including herself must deduct the said amount. Only if the house is ever sold for a large amount. Then also if Georgina does repairs or improvements, that also should be deducted. I Mary C. Neller being of sound mind do so request this order. If the house is really sold for a large amount, then I would like my Grandchildren including Paulies Jo Ann and James. All receive $100 each, also my greatgrandchildren [sic]. By then whats [sic] let can be devided [sic] 7 ways. I worked side by side with Dad. No one else did. God Bless all my children. I beg everyone some day speaks to each other before I die or at my wake. Always any one in need be there for each other. All my life I made up to everyone. Even Uncle John must be right never me. My brother died he did not speak to him either. Love each other always. Love & Kisses, Mom.

The Court, in denying probate, stated several reasons for its conclusion.

First, the Court could not presume the Will’s validity. Typically, a presumption of validity is granted to a will when an attorney supervises its execution. The instrument before the court, however, “was not supervised by an attorney and therefore lack[ed] the presumption of due execution.”

Second, the formal requirements of due execution mandated by EPTL §3-2.1 were not satisfied. In so ruling, the court explained that, although the Will was in writing and signed by the testator, there was no proof that the testator either signed the Will in the presence of each witness or acknowledged her signature to each witness within thirty-days after the Will’s execution, as required by § 3-2.1(a)(2). There was also no proof that the testator declared the instrument as her last Will and testament before each witness, as required by § 3-2.1(a)(3). No self-proving affidavits of attesting witnesses were attached to the Will to otherwise give a presumption of validity to witness signatures.

Third, for the same reasons, the Court found that the instrument “far from satisfied” the requirement of SCPA § 1408(1) — namely that the court be content with the genuineness of the will and the validity of its execution before it may be admitted to probate.

Fourth, the Court held that the Will, despite being dated April 25, 1989, could not be probated under the ancient document exception. The ancient document exception applies only if the Will is in existence for twenty or more years, the “genuineness of its execution can be established by its unsuspicious appearance,’ and after looking to ‘other circumstances.’” Here, the Court held that due to the existence of grammatical errors, unclear statements and the general appearance, the Will did not constitute an instrument that is “unsuspicious.” The language was simply “far too vague and inconclusive to create a binding and effective Will.” Much of the language in the Will was also “precatory in nature, and inconsistent with the language required in a Will.” The Court also pointed out that the motion papers in support of probate made no mention of where the Will had been kept after it was created or where it was found.

Lastly, in denying probate, the Court eloquently stated:

Some Courts have been particularly hesitant to probate a will when it “is unartfully drawn, and a literal interpretation of its language is not necessarily determinative. ”Though this Court often looks to the principles of fundamental fairness and equity when discerning a testator’s true intent, there is an initial level of formality one must achieve when executing a will. This instrument does not even come close to meeting the requisite level of formality.

Evictions Are Not Liberally Granted

Evictions Are Not Liberally GrantedRecently in IFS Properties LLC v. Willens, the District Court of Nassau County in a holdover summary proceeding was faced with what it determined to be “a case of first impression.” The Court framed the question as follows: “Does the exhibiting to Respondent of the deed by which Petitioner acquired title (not the deed from foreclosure) satisfy the requirements of RPAPL § 713(5)?” 970 N.Y.S.2d 865 (Dist. Ct., Nassau Cnty. 2013).

One who purchases real property at a sale under a foreclosure of a mortgage may maintain a summary proceeding under the Real Property Actions and Proceedings Law to dispossess the original owner, or any other person in possession under that owner, who had defaulted in paying the mortgage. RPAPL § 713(5) states that a special proceeding for eviction may be maintained after a 10-days notice to quit has been served upon the respondent, in the same manner as the service of a notice of petition and petition, when:

The property has been sold in foreclosure and either the deed delivered pursuant to such sale, or a copy of such deed, certified as provided in the civil practice law and rules, has been exhibited to him.

In order to obtain the warrant of eviction, it has been well established by the courts that the following elements are generally required: (1) that the foreclosed mortgage, which had been executed by the owner of the real property, was valid and enforceable; (2) that the mortgage was validly foreclosed; (3) that the property was validly sold under such foreclosure; (4) that the petitioner’s title to such property under such sale has been perfected; (5) that the occupant’s right of possession, if such occupant is not the mortgagor, was acquired from the mortgagor subsequent to the giving of the mortgage; (6) that either the deed delivered pursuant to such sale, or a certified copy of such deed has been “exhibited” to the occupants persons sought to be removed; (7) that the statutory 10-days notice to quit was given to the occupants prior to the commencement of the proceeding in the same manner as the pleadings themselves; and (8) that the occupants sought to be removed nevertheless held over and continue in possession of the property.

In IFS Properties LLC, it appears that the deed of foreclosure was obtained by the lender and the lender transferred the property to the Petitioner through a “Special/Limited Warranty Deed.” The Petitioner then “exhibited” the deed by which it acquired title (not the referee’s deed) prior to commencing the holdover summary proceeding. In addressing this case of first impression, the Court cited Section 312 of McKinney’s Statutes, which states: “Generally, a statute which takes the property of one person without his consent for the benefit of another is in derogation of common right and should be strictly construed.” Based upon this guidance, and other cited authority, the Court concluded that “Petitioner should have exhibited the referee’s deed to Respondent as required by RPAPL §713(5). This court understands Petitioner’s logic in exhibiting the deed from which it derived title to Respondent. However, this court is bound to follow the language of RPAPL §713(5) as written.” The Court concluded with the following guidance: “Petitioner may choose to exhibit both deeds to Respondent in order to avoid another claim by Respondent that the law was not complied with.” Accordingly the proceeding was dismissed without prejudice. This decision underscores the hyper-technical nature of summary proceedings to dispossess.

I ♡ Boobies!

BoobiesRecently, the United States Court of Appeals, Third Circuit, in Pennsylvania, was faced with a School District’s appeal, after the District court upheld a group of middle school students’ challenge of the District’s ban on breast cancer awareness bracelets which read “I ♡ boobies! (KEEP A BREAST).” B.H. ex rel Hawk v. Easton Area Sch. Dist., __ F.3d __ (3d Cir. 2013). The Third Circuit looked to U.S. Supreme Court precedent for guidance.

The U.S. Supreme Court famously stated in 1969 that neither “students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, (1969). That said, the Supreme Court has also recognized the special characteristics of the school environment, and thus, student’s First Amendment rights to freedom of speech “are not automatically coextensive with the rights of adults in other settings.” Morse v. Frederick, 551 U.S. 393 (2007).

In Tinker the Court was faced with three petitioners, ages 13, 15 and 16, who were suspended from their school in Des Moines, Iowa because they violated a school policy when they wore black arm bands in school as an objection to the hostilities of the Vietnam War.

The United States Supreme Court sided with the students’ rights stating:

The record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression.

Tinker, 393 U.S. at 514 (emphasis added).

In this recent case, the School District imposed restriction on the “I ♡ boobies!” bracelets could not be justified under Tinker. The record of a “substantial disruption” was “skimpy” at best. In fact, when the School District announced the bracelet ban, it had no more than an “undifferentiated fear or remote apprehension of disturbance.” Students had been wearing the bracelets on campus some time without incident. “Nor had any of the principals heard reports of inappropriate comments about ‘boobies.’ That track record speaks strongly against a finding of likelihood of disruption.” B.H., at *21.

Since Tinker, the U.S. Supreme Court has upheld three other instances when a student’s First Amendment rights can be restricted, even without the risk for a “substantial disruption.” The first is restrictions on “vulgar, lewd, profane, or plainly offensive speech in schools.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986). The second restriction is on speech that a reasonable observer would interpret as “advocating illegal drug use” and that cannot “plausibly be interpreted as commenting on any political or social issue.” Morse, 551 U.S. at 422. The last is restrictions on school-sponsored speech or speech that could reasonably be viewed as the school’s own speech. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).

Here, the only other plausible justification for the restriction of the bracelets was under Fraser; that the bracelets contained “vulgar” or “plainly lewd” speech. The Court rejected this contention as well, holding that the bracelets were not plainly lewd. “Teachers had to request guidance about how to deal with the bracelets, and school administrators did not conclude that the bracelets were vulgar until B.H. and K.M. had worn them every day for nearly two months.” If they were plainly lewd, it would not have taken the District two months to act. Further, “the Middle School used the term “boobies” in announcing the bracelet ban over the public address system and the school television station. What’s more, the bracelets do not contain language remotely akin to the seven words that are considered obscene to minors on broadcast television,” citing to George Carlin’s famous “Seven Words You Can Never Say on Television” monologue. The Court went on to say that, “[i]ndeed, the term “boobie” is no more than a sophomoric synonym for ‘breast.’ And as the School District also concedes, a reasonable observer would plausibly interpret the bracelets as part of a national breast-cancer-awareness campaign, an undeniably important social issue.”

As a result, the Third Circuit affirmed the District Court’s order allowing students to wear the “I ♡ boobies! (KEEP A BREAST)” bracelets.

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